Citation Nr: 0302394
Decision Date: 02/06/03 Archive Date: 02/19/03
DOCKET NO. 02-04 362 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Whether a timely substantive appeal was filed with
respect to the issue of whether new and material evidence had
been submitted to reopen a claim for service connection for
low back and left hip disorders as secondary to service-
connected status-post left knee arthroplasty.
2. Whether a timely substantive appeal was filed with
respect to the issue of entitlement to service connection for
a right knee disorder as secondary to service-connected
status-post left knee arthroplasty.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Carole R. Kammel, Counsel
INTRODUCTION
The veteran served on active duty from February 1958 to July
1961.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan.
FINDINGS OF FACT
1. The RO denied the above claims in a November 1997 rating
decision; the veteran was informed of the decision and of his
appellate rights on November 17, 1997.
2. The veteran disagreed with the November 1997 rating
decision and the RO provided a statement of the case
concerning these matters to the veteran on August 10, 1998.
3. A substantive appeal addressing these issues was received
on August 4, 1999.
CONCLUSIONS OF LAW
1. A timely substantive appeal has not been received with
respect to a November 1997 rating decision wherein the RO
denied reopening a claim for service connection for low back
and left hip disorders as secondary to service-connected
status-post left knee arthroplasty. 38 U.S.C.A. § 7105(a)(d)
(West 1991); 38 C.F.R. §§ 20.200, 20.302(b) (2002).
2. A timely substantive appeal has not been received with
respect to a November 1997 rating decision wherein the RO
denied a claim for service connection for a right knee
disorder as secondary to service-connected status-post left
knee arthroplasty. 38 U.S.C.A. § 7105(a)(d) (West 1991); 38
C.F.R. §§ 20.200, 20.302(b) (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As an initial matter, the Board notes that the Veterans'
Claims Assistance Act of 2000 (VCAA), codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West Supp. 2002), was signed into law in November 2000. The
VCAA, among other things, eliminated the well-grounded-claim
requirement and amended VA's duty to notify claimants and
their representatives of any information or evidence
necessary to substantiate their claims. See generally VCAA
§§ 3, 4, 7. However, during the drafting of the VCAA,
Congress observed that it is important to balance the duty to
assist
against the futility of requiring VA to develop
claims where there is no reasonable possibility
that the assistance would substantiate the claim.
For example, wartime service is a statutory
requirement for VA [NSC] pension benefits.
Therefore, if a veteran with only peacetime service
sought pension, no level of assistance would help
the veteran prove the claim; and if VA were to
spend time developing such a claim, some other
veteran's claim where assistance would be helpful
would be delayed.
146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of
Sen. Rockefeller). Thus, because the law as mandated by
statute, and not the evidence, is dispositive of this appeal,
the VCAA is not applicable. Mason v. Principi, 16 Vet. App.
129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-
30 (1994) (where application of the law to the facts is
dispositive, the appeal must be terminated because there is
no entitlement under the law to the benefit sought.).
An appeal consists of a timely filed Notice of Disagreement
in writing and, after a Statement of the Case has been
furnished, a timely filed Substantive Appeal. A Substantive
Appeal must be filed within 60 days from the date that the
agency of original jurisdiction mails the Statement of the
Case to the appellant, or within the remainder of the 1-year
period from the date of mailing of the notification of the
determination being appealed, whichever period ends later.
38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302(b).
In a November 1997 rating decision, the RO denied reopening
the veteran's claim for service connection for low back and
left hip disorders as secondary to service-connected status-
post left knee arthroplasty and denied a claim for service
connection for a right knee disorder as secondary to service-
connected status-post left knee arthroplasty. The veteran
was informed of the RO's decision and of his appellate rights
in November 1997. In response to his Notice of Disagreement,
the RO provided the veteran with a statement of the case on
these issues on August 10, 1998. Thereafter, in August 1999,
the veteran filed a Substantive Appeal addressing the
aforementioned issues.
Since a Substantive Appeal with respect to the denials of
reopening a claim for service connection for low back and
left hip disorders as secondary to service-connected status-
post left knee arthroplasty and entitlement to service
connection for a right knee disorder as secondary to service-
connected status-post left knee arthroplasty was not received
within one year of notice of the November 1997 rating
decision or within 60 days of the issuance of the statement
of the case, the Board must conclude that the veteran has not
filed a timely Substantive Appeal with respect to these
issues.
The Board notes that a Supplemental Statement of the Case
(SSOC) was issued on May 27, 1999, which addressed these
issues. VA's Office of General Counsel has held that if a
claimant has not yet perfected an appeal and VA issues a
supplemental statement of the case in response to evidence
received within the one-year period following the mailing
date of notification of the determination being appealed, the
law requires VA to afford the claimant at least 60 days from
the mailing date of the supplemental statement of the case to
respond and perfect an appeal, even if the 60-day period
would extend beyond the expiration of the one-year period.
VAOPGCPREC 9-97. However, in this case, the appeal received
on August 4, 1999, was more than 60 days after issuance of
the SSOC.
The Board also notes that the veteran addressed these issues
in testimony at a September 1999 hearing at the RO in
Detroit, Michigan. In certain instances, oral testimony can
be accepted instead of a formal Substantive Appeal. However,
in this case, the hearing itself came too late to remedy the
defect because it was held after the time period during which
the veteran had to file his Substantive Appeal.
Finally, in January 2002, the Board sent a letter to the
veteran informing that his Substantive Appeal with respect to
the issues on appeal might not have been 'filed on time,' and
he was requested to submit evidence indicating that it was
'filed on time' and/or to request a hearing before the Board
on the question of whether it was 'filed on time.' The RO
also informed him of these facts in a May 2002 letter. The
veteran responded that he had no evidence or argument to
submit and he did not want a hearing. Therefore, all due
process concerns were met in this case.
Absent a timely substantive appeal, an appeal was not
perfected on the denial of these claims, and the Board is
without jurisdiction to adjudicate the claims. Accordingly,
the appeal with respect to these issues addressed herein is
dismissed.
(CONTINUED ON NEXT PAGE)
ORDER
The appeal as to whether new and material evidence had been
submitted to reopen a claim for service connection for low
back and left hip disorders as secondary to service-connected
status-post left knee arthroplasty is dismissed.
The appeal as to entitlement to service connection for a
right knee disability as secondary to service-connected
status-post left knee arthroplasty is dismissed.
MICHELLE L. KANE
Acting Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.